What kind of damages can be sought after in a personal injury claim?

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Personal injury is an injury to the body or mental state rather than to one’s property. Be it negligence, deliberate action or misconduct, if physical or psychological damage is caused, one may file a personal injury claim. Some examples of frequent personal injuries cases include; motor vehicle accidents, incidents within the workplace, and medical malpractice.

Although all cases differ, in the majority of personal injury cases the injured plaintiff may be entitled to monetary compensation in court or an administrative proceeding.  Workplace injures differ from other personal injury claims in that an employer can only face liability in the  administrative forum called workers compensation, not in court before a judge and jury. Compensation awarded is intended to return the injured party to the state before the incident to the extent possible. Damages are categorized in two ways; special damages and general damages.  Special damages are quantifiable damages that result from the accident. For instance, in most cases that require medical attention as a direct result of the incident the injured plaintiff may be awarded monetary compensation for past, present, and future treatments. Additionally any items, ranging from motor vehicles to personal property, that have been damaged in the incident, are eligible for monetary compensation in order to restore the lost or damaged items. Lastly if either the injured plaintiff has been or is currently hindered from receiving income, the plaintiff may be entitled to receive compensation for lost work. While special damages are monetarily calculable, general damages are not as quantifiable. General damages include intangible suffering such as hardship, emotional distress and loss of amenity as a result of the accident. In most cases involving general damages, the injured plaintiff is entitled to monetary compensation in an amount determined by a jury to compensate for emotional distress.

However in some cases the actions of the injured plaintiff may affect the extent to which damages may be collected. For instance if the plaintiff has any fault in the incident or fails to mitigate the financial and physical damages resulting from the incident, damages may be cut or not given at all.  Lastly, all states have statutes of limitation. If the claim is not filed within the applicable time limit the injured person’s right to file a personal injury claim will be lost.

If you wish to learn more about the damages you can receive in a personal injury case, speak to an experienced attorney to help you understand your rights.

How do I determine if a death in the family is a ‘wrongful death’?

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The death of a person resulting from the legal fault of another is deemed a ‘wrongful death.’ In a criminal case a wrongful death is considered to be murder while in a civil case a wrongful death is the direct result of another’s carelessness.  Individual state law determines which family member can file for a wrongful death lawsuit. While in all states a living spouse or child can file a wrongful death lawsuit, some states limit siblings, grandparents, and extended family from doing so. The surviving qualified family members may sue for ‘wrongful death’ if their family member’s death was caused by another’s misconduct or negligence and has impacted the surviving family emotionally or financially. However all states have statutes of limitation regarding the time period in which a family member can file a wrongful death lawsuit. In most cases the lawsuit must be filed within two years of the date of the death. However this time period can be extended if the misconduct is discovered after the date. If this time period is exceeded the family member lose the right to file a lawsuit.

In order to determine if the death of a family member was a ‘wrongful death’ the family must establish the death was a direct result of another’s negligence, deliberate action or misconduct. Additionally the family must affirm they have been impacted emotionally or financially as a result of the family member’s death. Lastly in order for a wrongful death lawsuit to be brought, someone would need to be appointed as an executor or an executrix of the estate. In such cases where a minor is concerned the court will require a guardian be appointed to seek the minor’s best interest.

Lawsuits regarding wrongful deaths can be brought against individuals, companies, government bodies, and institutions. Wrongful deaths can include incidents such as a driver in a motor vehicle accident, a hospitals negligence regarding a patient’s care, or a government agent’s failure to produce essential road signage all resulting in fatal outcomes. Cases vary but families may receive compensation for damages including lost wages, loss of future income, emotional distress and other monetary losses as a direct result of the family member’s death.

If you wish to learn more about wrongful death, speak to one of our experienced and professional attorneys to help you understand your rights.

What Kind of Damages are Awarded in Sexual Harassment Lawsuits?

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If you are the victim of sexual harassment, you can file a lawsuit claim money damages from your employer.  There are five different kinds of compensation that a winning sexual harassment plaintiff can receive.  You should speak to an experienced lawyer to determine what types of compensation apply to your case.

Back Pay

Sexual-harassment-lawsuit-300x199The first kind of damages a winning sexual harassment plaintiff can receive is called “back pay.”  If you are fired because you won’t comply with your employer’s sexual demands, or if you quit because you can’t tolerate them, you may lose income if you can’t find another job. You have a duty to search actively for new work, but if you can’t find suitable work you can claim back pay from your employer, which means they must compensate you for all the earnings you have lost until the time of your trial, with interest.  You may also lose out on a raise if you don’t comply with your employer’s sexual demands, and this also could give rise to a back pay claim.

Front Pay

If by the time of your trial you still have not found replacement work despite diligent searching, you may be able to recover front pay. This means that the court will determine how long you are likely to be without work in the future, and compensate you for all of that lost income as well. Your employer may choose to offer you reinstatement rather than pay a large award of front pay, but if you believe the work environment is intolerable you may not be obligated to accept such an offer.

Pain and Suffering

Even if you don’t lose out on any income due to sexual harassment, you can still claim money damages if you experienced emotional or physical pain and suffering because of the mistreatment.  You should consult a medical doctor immediately if you believe you have experienced this type of trauma, and the doctor will testify at your trial to confirm your problems.  Then the court will determine an appropriate amount of money to fairly compensate for your past and future suffering.

Punitive Damages

If you can show that the employer’s actions were willful and intentional, federal law and some state and local laws allow you to make a claim for punitive damages. Such damages are not to compensate you but rather to punish your employer, so as to make them understand that the mistreatment must stop.  Such damages are calculated based on the income of your employer and can be very substantial.

Attorneys Fees

The last kind of compensation  you can obtain is attorneys fees. The law provides that if your attorney represents you successfully he or she can force your employer to pay all the fees for his or her work. It is up to the court to decide whether a winning attorney can receive a fee award, and if so how much. But if your attorney gets such an award, it might allow you to keep more of your own award yourself rather than sharing it with your attorney.

Can I be Fired for Complaining About Sexual Harassment?

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The Civil Rights Act of 1964 was created to prevent discrimination in the workplace based on race, sex, color, national origin, or religion. However, that does not mean that discrimination is not a common issue, or that sexual harassment does not take place in the work place. Sexual harassment is a common form of employment discrimination for people of both genders, differing sexuality, and does not have to come from someone of the opposite gender. The Equal Employment Opportunity Commission (EEOC) states that it is unlawful to harass an applicant or employee of any sex in the work place. Sexual harassment can take the place in the form of sexual bribery referred to as quid pro quo, or as a “hostile work environment” which is accompanied by offensive comments or unwanted physical contact.

If you approach your employer about a sexual harassment problem in your own workplace, you should be aware that your employer is legally obligated to address the matter and is liable for any of your, lost income, pain and suffering some employees have experienced negative consequences after filing a complaint or assisting with someone else’s. Some of these negative consequences include being fired, demoted, suspended, poor evaluations or an unfavorable job placement. Such action is called “retaliation” and this treatment by an employer is illegal and you may be able to file a lawsuit.

Being fired for reporting sexual harassment is just as illegal as the vulgar act itself. Even if you cannot prove sexual harassment, it does not mean that you cannot prove retaliation. You may be able to receive damages to compensate you for any negative action your employer may have taken against you. In some cases it may be difficult to prove that any retaliation has been made against you or your fellow co-workers, which makes it important that you contact an experienced attorney, who can help you address your situation. Your employer cannot fire you because you complain about sexual harassment. If you are fired, consult an experienced attorney to learn about your legal rights as soon as possible as there are strict deadlines to file all such claims.

If you have experienced sexual harassment or employer retaliation, speak to the Sexual Harassment attorneys at Eisenberg & Baum – call 212-353-8700 and schedule a consultation today.

7 Misconceptions about Personal Injury Cases

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  1. I have plenty of time to file my claim
    Statutes of limitation are laws that limit the amount of time you have to file a claim. The time frame varies depending on the nature of the accident and also varies from state to state. Statutes of limitation are strict deadlines and if you fail to assert a claim within the timeframe, you may be forever barred from bringing that claim.
    For New York State, see the table below:
    3 Years from date of accident Slip and Fall, Car Accidents, Product Liability, Other Negligence, Emotional Distress (Negligent)
    2 ½ Years (from date of malpractice or end of treatment) Medical Malpractice
    2 Years from Death Wrongful Death
    1 Year from act Libel/Slander, Assault/Battery, Emotional Distress (Intentional)
  2. The case will go to trial
    Not all personal injury cases go to trial. In fact, many cases settle before trial. This can be favorable for the plaintiff because it will save time and reduce hassle.
  3. I will have to pay a large sum of money in legal fees
    Many personal injury cases are conducted on “contingency basis” which means that the law firm will take only a percentage of the amount any amount collected through settlement or verdict.
  4. Once I’ve signed a retainer with one firm, I am stuck with them
    Even if you signed a retainer with one firm or attorney, you still have the freedom to change legal counsel. You must ensure that the proper paperwork is filed, and your outgoing attorney will be entitled to a lien on your case for the work performed.
  5. This will be quick and easy because my lawyers will take care of everything
    At Eisenberg and Baum we strive to make the process as simple as possible. However, it is important to remember that lawsuits require a level of involvement from all parties. Your attorney will need your cooperation throughout the case.
  6. I was partly at fault, so I do not have a case
    As humans, we sometimes place undue blame on ourselves and find ways to minimize the fault of the opposing party. It is worth a discussion with your attorney to make the determination of whether or not you have a case. At Eisenberg and Baum we will be happy to advise you.
  7. Any lawyer or law firm can handle a personal injury case
    It is important to choose a firm that has experience dealing with cases similar to yours. At Eisenberg and Baum, we are equipped with a seasoned team of lawyers who are well-versed in personal injury law.

What Should I Expect in the Personal Injury Lawsuit Process?

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Do you need an attorney? Whether you were involved in a catastrophic car collision, a slip and fall accident, or suffered an injury as a result of someone else’s negligence, below are some things to expect during the process.

Initial steps

personal-injury-casesPrior to filing a lawsuit, it is important to determine who is responsible for the injuries you have suffered. If you were involved in a car accident, we must determine the drivers and owners of the other vehicles involved. If you were injured in a slip and fall accident, the owner of the property along with any tenant or contractor responsible for the condition must be determined.

Once the responsible parties have been identified, generally a claim letter is sent indicating that you were injured in an accident and that a claim will be made for personal injuries. Sometimes, parties are able to resolve the dispute prior to filing a lawsuit. Otherwise, a lawsuit must be filed to pursue the claims in court.

Filing Lawsuit

Your attorney will prepare a complaint which alleges the facts which led to the injuries. The complaint details the parties involved, the occurrence, and the damages suffered.

Discovery

Once the lawsuit is filed, the discovery process can begin. Discovery can take the form of paper discovery such as written questions and answers and later takes the form of depositions. During a deposition, the attorneys in the case have an opportunity to question parties and witnesses. The individuals being deposed are under the same oath they take when they are before a judge and jury. During a deposition, an individual swears to tell the truth under penalty of perjury.

Throughout the discovery phase, your attorney will need your cooperation to respond to written discovery demands. It is essential that you listen to your attorney and provide the necessary documents and responses to the demands from opposing counsel.

Motions

Either party may make motions to the court seeking relief. Defendants often make a motion for summary judgment in an attempt to dismiss personal injury complaints. These motions can be based on a variety of factors. The opposing party has an opportunity to file papers in response to the motion in an attempt to defeat the motion. This process generally takes time and may push back any potential trial date.

What is the expected time table for my case?

At any point and time, the parties are free to engage in settlement discussions. If a case does not settle, it will proceed through the court system until it arrives at the trial stage.

This will depend on a variety of factors but you should understand that litigation is a lengthy process. An open line of communication with your attorney is important so that you can obtain case updates throughout the process.

Post trial

After a trial, if there is a verdict in your favor, steps will need to be taken to collect on that judgment. Therefore, as the plaintiff, if you win, it may take additional time to collect the verdict, assuming that the defendant has the ability and the assets to make the payment. Additionally, a party may appeal any part of or all of the verdict. This can result in additional delays in the case.

If you have been injured and would like to speak to an attorney, please do not hesitate to contact our office at 212-353-8700.

Can men be sexually harassed?

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The typical sexual harassment case involves a man demanding sexual favors from a female subordinate.  But what happens if a male or female manager makes sexual demands of a male subordinate? Can the male victim bring a lawsuit? The answer is that it is possible, but it is complicated and you need to consult with an experienced lawyer to determine your legal rights.

The law is not the same everywhere

The first thing to understand is that the law regarding sexual harassment varies from state to state. Even federal law, which is supposed to be the same everywhere, varies by state because different courts interpret federal law in different ways. That is why it is essential to speak to a lawyer who understands these complexities.

Men can bring sexual harassment cases against women

There is no difference between a man demanding sexual favors from a female subordinate or colleague and a woman demanding them from a male subordinate or colleague.  Both types of sexual harassment are equally wrong and illegal, and the same rules apply to both.

Men can bring sexual harassment cases against other men

When a man demands sexual favors from another man, courts have adopted a more skeptical view of the claims. Courts recognize three main categories of lawsuits that can be brought by men against other men.

First, when the harasser is homosexual .

Second, when the harasser is motivated by general hostility to the presence of someone of the same gender in the workplace

And third, when there is direct comparative evidence about how the alleged harasser treated members of both sexes.

Men face stigma

Whether the harasser of a man is male or female, the male victim faces some stigma in a sexual harassment case. The difficulty in a man bringing a sexual harassment case is that men are stereotyped by society as being less vulnerable to sexual harassment and less likely to suffer from it. This means that a man faces an uphill battle to convince a court that he has been victimized, and then another uphill battle to convince the court that he has suffered substantial damages.  This means that men need particularly skilled and experienced attorneys to represent them in bringing such claims. But men should not be afraid to step forward and make their claims, since otherwise the problem of sexual harassment will never be resolved.

5 Common Types of Car Crashes that Result in Personal Injury Cases

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1. Rear-End Collisions

A rear-end collision is a common type of car accident which can result in personal injury.  A rear-end collision can occur for a multitude of reasons, but typically involves two cars going at different speeds.  A rear-end collision occurs when the first car slows down suddenly and without warning, leading the second car to run into it going at a higher speed and causing a collision.  The other type of rear-end collision can occur when the second car speeds up faster than the car in front of it, causing a collision from behind.  A rear-end collision can result in a personal injury if the parties in either car are injured by the collision.

2. Side-impact Collisions

A side-impact collision is another type of car accident which can result in personal injury.  A side-impact collision occurs when a car is impacted on the side by another car or object.  Typically a side-impact collision occurs when one car is not paying attention to the rules of the road and goes illegally through an intersection without properly signaling or checking that the coast is clear for them to cross.  This accident impacts a side of the car which is less equipped to deal with collisions and therefore personal injury is more likely to occur than in other accidents.

3. Head-on collisions

car-crash-accident-lawyerA head-on collision is a car accident in which two vehicles hit each other front-end to front-end.  In a head-on collision it is very likely that one of the drivers was not paying attention to the rules of the road, and was in the wrong lane when the accident occurs.  These accidents are especially dangerous and often result in personal injuries.               

4. Single car collisions

Single car collisions occur for a multitude of reasons, and can result in personal injuries for the driver or passengers of a car.  One reason for a single car collision is a defective roadway, which can manifest in a lack of signage or the incorrect placement of a sign or barrier.  These types of accidents can lead to personal injuries through high-speed impact with barriers or other objects such as traffic lights or trees.

5. Collisions with pedestrians or bicyclists

A collision with a pedestrian can result in personal injury for both the driver of the car and the pedestrian depending on the accident.  The person who is hit by the car can sustain many different types of personal injuries from the collision.  Personal injury is very likely to occur in the case of a pedestrian collision, more likely for the pedestrian, than for the driver. A collision with a bicyclist occurs when a driver of a car or the rider of a bike does not pay attention to the rules of the road.  Because of the size and weight difference between bicycles and cars, the rider of the bicycle is more likely to sustain a personal injury after a collision than the driver of the car.  In both cases the person who is not in a car is likely to sustain personal injuries.

If you’ve been involved in any of these types of accidents and need an attorney, please do not hesitate to contact our office with questions

What Kind of Lawyer Handles Car Accidents?

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Immediately after being in a car accident, it is natural to feel uncertain and to have many questions. That is especially true if it seems the incident happened through no fault of your own and you’re interested in seeking compensation. Rather than wrestling with doubt about what your future holds, make an appointment with a legal professional who can help you understand more about the available options. Specifically, a car accident lawyer from a personal injury law firm is a good person to have on your side through what may, otherwise, be a very challenging time.

Determining Fault

A legal expert can be a very important resource when it comes to determining who is at fault in an accident. Generally, the person who is found to be at fault is said to be negligent, which means they did not exercise a reasonable amount of care to prevent something dangerous from happening. Your lawyer can look at data from police reports, medical records and even details about what the weather conditions were like when the accident occurred, all to help determine fault. It is also important to have a legal professional who understands the rules of the road, especially if you think another person who was involved in the accident was not driving safely and following the laws.

Dealing With Your Insurance Company

A car accident lawyer can also be a valuable resource if you are trying to communicate with your insurance company. If an insurer senses you are not experienced in speaking with company representatives, you may not be able to get the compensation you deserve after an accident.

Helping Your Recovery

As a car accident victim, you may experience challenges that make it impossible to work or do anything that you once enjoyed. In situations like those, a car accident lawyer will work to uphold your legal rights so you can concentrate on getting better. In order to fully document just how severely an accident has affected your way of life, you may find it helpful to keep a diary that details things like your level of physical pain, amount of emotional trauma you’re suffering, and whether you have had to do things like seek supplemental child care because you are no longer able to watch over your kids.

You deserve to have a person who understands what you’re going through and possesses the legal expertise that could help you get a desirable outcome. Begin the process of seeking the compensation to which you may be entitled. Just request your complimentary consultation now – call 212-353-8700.

Common Types of Personal Injury Cases

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Generally, most activities that people engage in on a daily basis, from sports to riding a bicycle, have either a fairly low risk of injury or can be performed in a manner which helps minimize injuries. However, while you may conduct yourself in a reasonable and responsible manner, there is no guarantee that everyone else will follow suit. Unfortunately, it is very possible for the negligent actions of others to result in serious injuries for you even if you are acting exactly as you should in a given situation. In such cases, filing a personal injury lawsuit may be appropriate, as it can help you secure compensation for your injuries, pain and suffering. Not every accident results in a personal injury claim, but some situations give rise to them more frequently than others.

Most Common Types of Personal Injury Cases

personal-injury-cases-new-yorkNo two personal injury cases are the same, but similar situations tend to produce similar results in the realm of personal injury cases. Due to the combination of potentially dangerous machines and the massive quantity of drivers hitting the roads each day, car accident law suits are among the most common personal injury cases. Car accidents also tend to be common cases because there are many potential causes of auto collisions. These include distracted driving, excessive speed, driving while under the influence of drugs or alcohol, and simply driver error. Car accident law suits may potentially result in compensation for lost wages, injuries, property damage, and pain and suffering.

Another common type of personal injury cases are those arising at construction sites. As with car accidents, construction sites involve the intersection of dangerous machines and the potential for human error. Additionally, there is an added danger for workers at construction sites and other workplaces because the responsibility for ensuring proper safety measures are observed is normally out of a worker’s hands. Where one’s safety is in the hands of another, the potential for a lawsuit, based on the negligent actions of a third party, arises.

Does the Type of Personal Injury Case Matter?

There is a reason that attorneys focus in different types of personal injury law; the cases can be dramatically different depending on the type of personal injury case, and even the governing law can be different. For example, with respect to labor law and construction accident law, most employers tend to be subject to the provision of state workers’ compensation statutes, which impose different standards than laws that apply to car accidents or other injury settings. Because of the variances in liability, insurance, and standards for reasonable behavior, it is important to get an expert in the particular type of personal injury law most relevant to your situation. This can give you the best shot at securing the compensation you deserve based on your injuries, missed work, hospital bills, and pain and suffering. Of course, these common types of personal injury claims are just a fraction of the types of potential claims that can arise, so consult a lawyer if you have been injured due to the actions or omissions of another person.